Opposing Hate Crime Laws

By Jeralyn, Section Legislation
Posted on Thu Sep 15, 2005 at 10:51:00 AM EST
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Here are some arguments against legislation to increase criminal penalties for hate crimes at the federal level--they come from an article I wrote in 2000, (from the last paragraph, I assume it was sometime after the murder of Matthew Shephard):

The federal judiciary released a statement recently expressing constitutional and practical concerns about hate crime laws. The underlying criminal activity of a hate crime, such as robbery, assault, or murder, traditionally falls under state jurisdiction. The concern is that by passing federal hate crime laws, there will be a mass federalization of crime which should and could be adequately handled at the state level instead of overburdening our already overwhelmed federal courts.

There is no evidence to suggest that hate crime laws will have a deterrent effect upon hate crimes.

In many cases, it is very difficult to prove a hateful motivation for the criminal act. The decision to charge a hate crime as such should not be left to law enforcement. The F.B.I., for example, includes gestures and other body language in its hate crime statistics. Prosecutions to date in some cases have been based upon bigoted statements made several years before the act in question.

There are already sufficient criminal laws and penalties on the books to punish hate crimes. We should punish the act, not the thought process of the actor. If these acts are inadequately prosecuted and punished when the victim is of a minority or disadvantaged class, the answer lies in increased education and sensitization of law enforcement and the judiciary.

Since 41 states already have hate crime laws, expanding federal laws in this area could result in double prosecution in many instances, with the federal government following up in cases where they simply do not like the results in state trials.

The gender provision of the proposed federal expansion bill could make run-of-the-mill rape and domestic violence incidents “federal hate crimes.” The disability provision could result in basic crimes against disabled victims -- such as mugging a person in a wheelchair -- being prosecuted as “federal hate crimes.” The result risked is a trivialization of the federal criminal sanction.

Thought is the core value of the First Amendment’s freedom of speech clause. It is absolutely protected and any attempt to regulate it cannot be tolerated.

In many cases, enhanced penalties are not even possible. In most states, the penalty for murder is life in prison, and in many, the death penalty is already available.

Granting increased